Discovery

One of our favorite attorneys came in recently, and talked the housing counselors through some murky legal issues. One of the topics that blew my mind was: folks in small claims court can ask the other party (as they sue/are being sued/are one of the people in a small claims case) for the evidence that they are using. Since small claims court is the place of last resort for many tenant-landlord issues, finding out there is a way to make that process be clearer/better/more in line with the facts is kind of amazing.

Now, I'm not a lawyer, and I had secretly kind of believed that "discovery," the procedures used to obtain disclosure of evidence before trial, were something that were: A. Only used on tv, B. Especially only for criminal trials and C. Something only lawyers can do. Turns out none of those things are true! Discovery is the tool of the masses! Here's how to do it.

The Situation: As soon as someone files a claim or suit in court, either party can ask the other party for evidence about that claim. It may be asking for something that was written, it may be requesting answers to questions, it may be a request to come in and take photos - but they all must be things related to the court case that's pending. (For example: tenant can ask the landlord for receipts they have for repairs done. Landlord could ask the tenant for a copy of the payment plan that they made with the utility company. A tenant could ask the landlord to respond to the question: "Did you actually replace the carpet? If so when and if so tell me the name of the company that did the work, and their phone number.").

The Timeline:

A small claims suit is filed.

One of the parties wants evidence or access to evidence from the other party, so they make a discovery request. This is done on your own.

The person who gets that request, who has to give the evidence or give access to the evidence, has 30 days to respond in writing. The written answers must be sworn to before a Notary. Upon request of one of the parties, if there is good cause, the court can change that time. [Exception: if the person who is filing the small claims suit is asking the person that they're filing against for this evidence, than the person filed against (the defendant) has 45 days from being served with the summons and complaint, though the court has the right to change this amount of time, too.]

Don’t wait too long to make your request. If you put the request out when there is less than 30 days until the trial, the other side is entitled to just ignore your request.

It’s really easy – just send a written request for this information to the other party:

Step 1: Send a letter on your own. You don't have to go through the court to send a letter requesting discovery. Write a letter, asking for the evidence (or access to evidence) that you want. Send it through regular snail mail. Make sure you date your letter, and keep a copy, and note down on your copy the date you put it in the mailbox.

Step 2: Through your county court. If the other party (that person that you sent the letter to, asking for the evidence) doesn't reply, then you can file a motion in court. You go to your county courthouse and file a "Motion for Discovery." This Motion for Discovery asks the court for what you're hoping that they'll do (such as issue an Order compelling the other side to answer). You attach what you sent, along with your statement about their failure to comply. Once filed, this whole paper trail will become part of the case file. There aren't easy-to-fill motion forms, but in Dane County, you can get information on how to craft your own motion from the Dane County Law Library, in the courthouse.

Why is it worth it? Discovery allows you access to evidence ahead of time, which other methods don't do. And if the other party doesn't respond to your request, the court really can do something meaningful.

What can you ask for, in discovery? Here are some (not all) of the kinds of evidence you can ask for (from Wis. Stat. 804.01(1)):

You can ask that someone respond to written questions

You can ask that the other person or party give you copies of documents or objects or photos or video

You can ask for permission to enter upon land or other property, for inspection or photographs

Anything you ask to see or do must reasonably seem like it'll lead to helpful evidence. You can't be asking for things you easily have access to in other ways.

This is complicated. Is there a different way? Of course!

Just ask in court: Small claims is set up to be handled by folks without attorneys, and without knowledge of Big Legal Concepts. If you are in court, you can ask that the other party show evidence for statements that they are making. If they do not have any proof whatsoever to back up what they are saying, then the court can choose to disregard those statements. This gets tricky where the other party has a little bit of evidence, but you think it's wrong somehow, and you don't have any way to prove that squidgy feeling. (For more information about Small Claims Court, go to our Small Claims Court Tips.)

Subpoena: Instead of going through a motion for discovery in court, you could instead choose to subpoena the other person, which is an easier form to fill out. (Form is here - from WI Courts website.) That means, you fill out a motion to subpoena at the courthouse, and at the bottom of that form, ask the other person to bring the documents or evidence to court with them. However, unlike discovery, you don't get a preview of the other person's evidence – you see it in court at the trial for the first time. Without seeing it in advance it doesn't allow you to go and collect your own information (like asking for access to a rental unit in order to take photos, or contacting the carpet company to see if they really did replace the whole carpet or not).

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As a side note, many of these rules of discovery are very different for folks in prison. So, if you're in prison, and you are hoping to gather evidence from the other party in a case, you need to follow the rules in Wis. Stat. 804.015.

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Hi! Did you know that we are not attorneys here at the TRC? And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.

No part of this website should be regarded as legal advice, or replace an individual's responsibility to be familiar with the law. If you need legal assistance or representation, consult a Wisconsin housing attorney.